Plaintiff argues that tribe's bid to have gaming suit dismissed is 'absurd'

Saturday

Oct 6, 2012 at 12:01 AMOct 6, 2012 at 7:04 AM

KG Urban Enterprises is objecting to the Mashpee Wampanoag's motion to intervene in its lawsuit against the state's Expanded Gaming Act, ridiculing the tribe's "Catch-22" argument to dismiss the case.

STEVE DeCOSTA

KG Urban Enterprises is objecting to the Mashpee Wampanoag's motion to intervene in its lawsuit against the state's Expanded Gaming Act, ridiculing the tribe's "Catch-22" argument to dismiss the case.

"The Mashpee's motion is remarkable for its sheer audacity," Paul Clement, KG's lead attorney, wrote in papers filed Friday in U.S. District Court.

"This case involves a private party's constitutional challenge to a state statute," he wrote. "The notion that KG's equal protection claims must be dismissed solely because one economic beneficiary of the challenged state action has sovereign immunity is nothing short of absurd."

KG, which hopes to develop a commercial casino on the New Bedford waterfront, is challenging the preference given to federally recognized Indian tribes for exclusive rights to casino gaming in Southeastern Massachusetts. The Mashpee have used that preference to gain the inside track to operate a sovereign, federally regulated casino, exclusive to Southeastern Massachusetts, in Taunton.

Last month, the tribe asked to become a party in KG's case. But, because it is a sovereign nation that has no right to intervene, it claimed the case must be dismissed.

"The upshot of the Mashpee's remarkable pleading is that a non-tribal party can never vindicate its federal constitutional right to equal protection if the statute unconstitutionally benefits a tribe that declines to waive its sovereign immunity," Clement wrote. "This heads-I-win-tails-you-lose assertion is not and cannot be the law."

KG claimed the Mashpee's only interest in the case is financial, which is not legally protected.

The developer argued that if the tribe feels so aggrieved by the lawsuit, it should waive its sovereign immunity and become party to the proceedings.

"KG could always name tribal officers as defendants," the filing states. "Tribal officers have no more claim to sovereign immunity than the state officers named in their official capacity.

"If the court were to conclude that this suit should not proceed without the participation of a representative of the Mashpee, it should not dismiss this case, but should grant KG leave to amend its complaint to add as defendants Chairman Cedric Cromwell and the other members of the Mashpee Wampanoag Tribal Council, in their official capacities."

KG also refuted the Mashpee's claims that its challenge of the tribal preference seeks to invalidate the tribe's casino compact with the state and that it would interfere with the process under which the tribe is seeking to have the Taunton land taken into trust by the federal Department of the Interior.

Also pending before Judge Gorton is a motion by the Wampanoag Tribe of Gay Head (Aquinnah), the state's only other federally recognized tribe, to intervene in the case, seeking to protect gaming rights on land it holds in trust. KG is opposing that request, while a filing by the state takes no position on it.

KG, a New York-based development firm that hopes to build a commercial casino at the site of an abandoned power plant on the New Bedford waterfront, challenged the Expanded Gaming Act on the day Gov. Deval Patrick signed it, claiming its preference for a tribe to receive the Southeastern Massachusetts casino license amounted to an illegal, race-based set-aside.

Judge Gorton threw out the case in February but, five months later, a federal appeals court panel of three judges ruled the dismissal was improper and ordered him to reconsider.